Opinion
1:19-cv-954-JLT-HBK
10-11-2022
DARRYL HUDSON, Plaintiff, v. C. PFEIFFER; R. COX; J. DIAZ; D. BALKIND; R. NUCKLES; A. SOTELO; R. RODRIQUEZ; J. FERNANDEZ; J. FIGUEROA; V. ESCOBEDO, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(DOCS. 20, 32)
The magistrate judge issued findings and recommendations recommending that the Defendants' motion to dismiss be granted because the action is barred by the statute of limitations. (See generally Doc. 32.) Plaintiff timely filed his objections.
In the objections, Plaintiff acknowledges that the magistrate judge found the complaint was filed in excess of the two-year statute of limitations by two months and twenty-nine days, but argues that the magistrate judge failed to consider the “imminent danger and excessive risk of harm by defendants['] retaliations, threats, coercions, intimidation and fear of death.” (Id. at 1.) Plaintiff states he was hospitalized and had no access to the law library from June 30, 2016 through April 10, 2019. (Id. at 2.) Additionally, Plaintiff attaches an inmate's declaration in support of his objections. (Id. at 4-5.) Inmate Calloway's declaration attests to helping Plaintiff litigate his case when he arrived at Kern Valley on April 10, 2019. (Id. at 4.) Inmate Calloway alleges he faced retaliation by unidentified officers at Kern Valley because of helping Plaintiff litigate his case and was told to “mind his own business.” (Id. at 4-5.) Inmate Calloway further attests that because of the retaliation, he was delayed and unable to help Plaintiff litigate his case until July 11, 2019. (Id. at 5.)
The arguments Plaintiff raises in his objections were not raised in his opposition to the Defendants' motion to dismiss. (See Doc. 24.) Though the court has discretion to consider arguments raised for the first time in objections to a magistrate judge's findings and recommendations, (Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) (citations omitted), it declines to do so here. In his opposition to the motion to dismiss, he did not even hint at the grounds for equitable tolling raised in his objections. (See Doc. 24.) Instead, Plaintiffs opposition argued that Defendants' motion was frivolous because the statute of limitation was four years, not two. (Doc. 24 at 2.) Additionally, Plaintiff argued that the accrual date of his claim was the date on which he finished exhausting his administrative remedies, not the date the excessive force occurred. (See generally id.)
As noted in the findings and recommendations, Plaintiff's claim accrued on June 30, 2016, when the use of force incident occurred. (Doc. 32 at 7-8.) The magistrate judge properly rejected Plaintiff's argument that the accrual date is the date Plaintiff finished exhausting his administrative remedies. (Id.) In addition, because Plaintiff is serving a life-sentence in the California Department of Corrections, the magistrate judge properly concluded that a two-year statute of limitation applies. (Id. at 8.)
According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. Thus, the Court ORDERS:
1. The findings and recommendations issued December 17, 2021, (Doc. 32), are ADOPTED IN FULL.
2. Defendant's motion to dismiss (Doc. 20) is GRANTED.
3. The Clerk of Court is directed to CLOSE THIS CASE.
IT IS SO ORDERED.